SHIJA PAUL RULING ON CASE TO ANSWER

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY

SITTING AT BUKOBA CRIMINAL SESSIONS CASE NO. 20 OF 2023

REPUBLIC

VERSUS SHIJA PAUL.................................................................. ACCUSED

RULING 07/10/2024 & 08/10/2024 E L. NGIGWANA, J. This is a ruling to determine whether, from the evidence adduced, the prosecution has made out a primafacie case against the accused person to warrant him being called upon to make his defence. In our jurisdiction, it is a mandatory procedural requirement stipulated under the provisions of section 293 (1) of the Criminal Procedure Act, [Cap. 20 R. E 2022], that upon the closure of the prosecution case, the Court (High Court) has to determine whether the prosecution has established a i primafacie case sufficiently to require the accused person/persons to enter a defence. At this stage, the Judge must consider whether the evidence, when taken at its highest, is such that the court properly directing its mind to the law and the evidence adduced before it, could not properly convict upon it. If the answer to that is yes, the Judge should make a finding of not guilty and proceed to dismiss the charge and acquit the accused person accordingly and, if the answer is no, the Judge must make a finding that a primafacie case has been established against the accused person/persons, and then, address the accused person(s) in the terms of section 293 (2) of the Criminal Procedure Act, [Cap 20 R.E 2022]. T The standard of proof at the close of the case for the prosecution is a prima facie case as opposed to beyond reasonable doubt which can

only be arrived at after evaluating the evidence led by both the prosecution and the defence. This was a position in Rex V. Jagjiwan M. Patel and Four Others (1948) 1 TLR (R) 85 where it was observed that: "... all that the Court has to decide at the dose of the evidence in support of the charge is whether a case is made out against the accusedjust sufficiently to require him to make his defence. It may be a strong case or it may be a weak case. The Court is not required at this stage to apply its mind in 2 deciding finally whether the evidence is worthy of credit or whether if believed it is weighty enough to prove the case conclusively beyond reasonable doubt A ruling on a case to answer would be justified in my opinion in a borderline case where the Court, though not satisfied as to the condusiveness of the prosecution evidence, is yet of opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conviction." In the matter at hand, the accused person stands charged with the offence of Murder contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R. E 2022], whereby the Prosecution alleged that the accused person 30th day of July 2022 at Mbagalusenga Village within Biharamulo in Kagera Region, with malice aforethought, did cause the death of Paschal Maisha. When the charge was read over and explained to the

accused person, he denied the charge. In support of the charge, the prosecution marshaled five (5) witnesses and tendered three exhibits to wit; a Report on Post-Mortem examination (exhibit P), statements (Exhibits P2 and P3) tendered under section 34B of the Evidence Act, [Cap. 6 R.E 2022]. Below is the summary of the prosecution evidence adduced in support of the charge. PW1 Domitina Kagemulo Prosper, a clinical officer testified that on 30/07/2022, during night hours she attended Paschal after being brought to 3 the Hospital. She added that the patient had wounds on the head, back and legs. She went on testifying that the next day, she referred the Patient to Biharamulo Hospital for further treatment. However, on 06/08/2022, she learned that Paschal Maisha had passed away therefore, she examined the deceased's body and found that the cause of death was excessive bleeding due to head injury. She added that after the said examination, she prepared the report on postmortem examination. She tendered the report without objection and it was admitted as Exhibit Pl. When cross-examined, she said that she later knew that Pascal Maisha was not taken to Biharamulo for further treatment, but he was taken back home. She further said that in her statement recorded by the police, she did not state that the condition of Pascal Miasha was bad or that she gave him a referral to Biharamulo

Hospital for further treatment. PW2, Roza d/o Baltazari, the biological mother of the deceased testified confirming the death of the deceased. She added that the incident took place during night hours. She added that on the material night, she saw seven people including the accused assaulting the deceased and she identified them through a phone's torch light. She went on to testify that Paschal Maisha was matched to the Police post and was given PF3 and taken to the Hospital for treatment, he was treated and the next day, they were allowed 4 to go home with him but on 05/08/2022, he became very serious, and hence died on the way to the Hospital. She confirmed that the Clinical Officer (PW1), conducted a postmodern examination. When cross-examined, she said that she had a battery torch on the material night while the accused and other suspects had phone torches. PW3, Edward s/o Stephano Mbakazi who is a Hamlet leader testified that on 30/07/2022, during night hours, he received a telephone call from Stanislaus Stephano who informed him that there was a group of people (mob justice) threatening to kill Paschal Maisha. He added that he rushed to the crime scene and saw Revocatus and Edward with the help of phone's torch lights, and informed the police who immediately responded to his call, and helped them to take Paschal Maisha to the Hospital. He added that on 5/08/2022 at 19:00

hours, he received a phone call from Paschal's relatives to the effect that Paschal had died. When cross-examined by the learned defence counsel for the accused, he said that the incident took place during the night and People were many because there was a ceremony in the village. He added that he did not see the accused on the material night at the crime scene. He went to state that PW2 had nothing except her child on her back. When specifically asked whether PW2 had a torch, PW3 said that PW2 had no torch. When asked 5 whether PW2 accompanied the victim to the hospital on the night, PW3 said that, no woman accompanied Pascal Maisha to the Hospital. PW4 F. 5156 D/SGT Nassoro testified that on 30/07/2022, during night hours, he went to Mbagalusenga Hamlet after being informed that there was a thief who was arrested by villagers, and the said villagers were threatening to kill him. He added that he arrived at the crime scene using a motorcycle; thus, took the said Paschal Maisha, issued a PF3 at the police post, and then while accompanied by other persons including PW3, took him to Kikomakoma Dispensary for treatment. He went on to testify that on 05/8/2022, he was informed that Paschal Maisha had passed away, and on 06/08/2022, he joined other policemen at the home of the deceased and recorded statements of the witnesses. He added that he was the one who arrested the accused

but did not interview him on the allegations of murder. PW5 G. 1615 D/CPL Abdul was not among the witnesses listed during committal proceedings, he was added to the list of prosecution witnesses through section 289 (1) of the CPA to tender the statements of two witnesses Eliud s/o Jovin and Edina Simon who were traced with no success. The notice to tender their statements was made under section 34B (1) and 2 (@) (b) (c) (d) (e) and (f) of the Evidence Act, [Cap. 6 R. E 2022]. 6 PW5 testified that he recorded the statement of the said witnesses on 8/08/2022. The statement of Eliud Jovin was admitted as Exhibit P2 while the statement of Edina Simon was admitted as Exhibit P3. On cross-examination, PW5 said that, as per Exhibit P2, the one who hit the deceased on the head using a hoe is Revocatus. He added that, reading both Exhibits P2 and P3, it cannot be concluded that the accused is the one who murdered the deceased. That marked the end of the prosecution case. The provision of Section 293 (1) of the CPA Cap 20 R: E 2019 provides that; "Where the evidence of the witnesses for the prosecution has been concluded, and the statement, if any, of the accused person before the committing court has been given in evidence, the court, if it considers after hearing the advocates for the prosecution and for the defence, that there is no evidence that the accused or any one of severai

accused committed the offence or any other offence of which, under the provisions ofsections 300 to 309 of this Act he is liable to be convicted, shall record a finding of not guilty." Reading the herein above provision of the law, it is apparent that where there is direct cogent evidence implicating an accused in the offence charged, there is no need for the trial judge to waste time to invite the State 7 Attorney for prosecution and the defence counsel to make "no case to answer submissions". The mandatory duty of the trial court where there is cogent evidence is to prepare a ruling that the prosecution has established a primafacie case against the accused person and address him accordingly under the terms of section 293 (2) of the CPA. See EX D.1995 PC Ahamed versus the Republic, Criminal Appeal No.207 of 2014 (Unreported) The case at hand, upon reading the law and the evidence of the prosecution, and being guided by section 293(1) of the CPA, I considered it not necessary to invite the defense counsel and the learned State Attorneys for the prosecution to make submissions before the ruling on a primafacie case is composed. As pointed out earlier, it is trite law that at the close of the prosecution case, the trial court has to satisfy itself as to whether or not a primaface case has been established against the accused person sufficiently enough to put him/her on his

defence. The term primafacie case has not been defined in the statutes, however, in the case of Ramanlal Trambaklal Bhatt versus R [1957] EA 332, the term primafacie case was defined to mean one on which a reasonable 8 tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence. In the case of Director of Public Prosecution Versus Morgan Malik & Nyaisa Makori, Criminal Appeal No 133 of 2013 CAT- (Unreported) it was held inter alia that; "A prima facie case is made out if, unless shaken, it is sufficient to convict an accused person with the offence with which he is charged e or kindred cognate minor one ..., the prosecution is expected to have proved all the ingredients of the offence or minor cognate one thereto beyond reasonable doubt. If there is a gap, it is wrong to call upon the accused to give his defence so as to fill it in, as this would amount to shifting the burden of proof" In the persuasive case of the High Court of Kenya; Republic versus Robert Zippor Nzilu, Criminal Case No. 14 of 2018, court while addressing the issue of primafacie case, cited with approval the case of Public Prosecutor versus Saimin and Others [1971] 2 MU 16 where it was held among other things that; "It is the duty of the prosecution to prove the charge against the accused beyond reasonable doubt and the court is not entitled

merely for the sake of the joy of asking for an explanation or the gratification of 9 knowing what the accused have got to say about the prosecution evidence to rule that there is a case for the accused person to answer" From the above authorities, it can be learned that to decide that the accused person has a case to answer, the prosecution must have given sufficient evidence capable of convicting an accused should the accused person forsake the right to defend himself/herself. The court is therefore, not entitled merely for the sake of the joy of asking for an explanation or the gratification of knowing what the accused have got to say about the prosecution evidence to rule that there is a case for the accused person to answer. In other words, where the trial court is satisfied after the closure of the prosecution case that there had been no evidence to prove the essential elements of the crime; or that the evidence had been discredited as a result of cross-examination, or that the evidence was so manifestly unreliable that no reasonable tribunal could safely convict upon it, the accused should be relieved of the responsibility of defending himself. I have also been persuaded by the Kenyan Case; R versus Elizabeth Nduta Karanja and Another [2006] KLR Criminal Case No.52/2005 where it was held that; 10 " Without such primafacie justification, there is no legal basis for

putting the accused through the trouble of having to defend himself" In Malik George Ngendakumana vs. Republic (Criminal Appeal 353 of 2014) [2015] TZCA 295 TANZLII, the Court elaborated that the duty to prove the case is two-fold, in that the prosecution must prove that the offence was committed and that the accused committed the same. The Court stated: " The principal of law is that in criminal cases the duty of the prosecution is twofold. One, to prove that the offence was committed, and two, that the accused person is the one who committed it." In the matter at hand, the prosecution through PW1, PW2, PW3, and PW4 has managed to prove that the deceased Paschal Maisha died unnatural death, and considering that the part of the body that was severely attacked to wit, the head, it goes without saying that the prosecution also managed to prove that the act which led to the deceased's death was actuated with malice aforethought. However, reading the whole evidence presented by the prosecution, there is no cogent evidence linking the accused with the offence of murder. I am saying so because the only evidence linking the accused person with this offence is the evidence of visual identification through torch lights and voice identification. li It is a settled position of law that visual identification is of the weakest kind and as such, the courts are cautioned not to act on such

evidence unless satisfied that all possibilities of mistaken identity are eliminated and evidence before it is absolutely watertight. This was emphasized in the case of Waziri Amani versus R., [1980] T.L.R 250 where the Court stated that in evidence relating to visual identification, factors to be taken into account include: One, the duration the identifying witness observed the accused; two, the proximity from the point of observation; three, the nature and sufficiency of light at the scene of crime; and four; whether the accused is a stranger to the identifying witness. The rationale in listing factors is to ensure that a criminal case whose determination depends essentially on identification, evidence on conditions favoring positive identification is of utmost importance. In the matter at hand, it is not in dispute that the fateful incident occurred during nighttime in the dark. Therefore, the question to be addressed is whether, at the scene of crime conditions were conducive to facilitate positive identification of the appellant. PW2 testified that she identified the accused by the help of torchlight but she did not give further descriptions of the intensity of light and how she correctly identified the accused. Furthermore, when PW3 was cross-examined, he said that PW2 had no torch 12 on the material night except her child on her back. PW3 added that the accused was not

at the crime scene. According to Exhibit P3, Edina Simon identified the accused through his voice and phone's torch light. It is trite that evidence of identification through voice is also unreliable. In Stuart Erasto Yakobo versus. R, Criminal Appeal No. 202 of 2004 (unreported), when faced with similar scenario, the Court of Appeal stated thus: "In our considered opinion, voice identification is one of the weakest kinds of evidence and great care and caution must be taken before acting on it say so because there is possibility that a person may imitate another person's voice." It should also be noted that Edina Simon, maker of the statement (Exhibit P3) did not appear in court to testify and cross-examined as per the law. Also the statement requires corroboration which is basically missing in the matter at hand. In order to rule out that the accused has a case to answer, cogent evidence must exist sufficient to convict the accused person even where no explanation or defence is offered by the accused. The Court of Appeal in Director of Public Prosecutions vs Peter Kibatala (Criminal Appeal No. 13 4 of 2015) [2019] TZCA 157 (4 July 2019), had the following to say regarding a prima facie evidence­ 'll natural and ordinary meaning makes it plain that, this being a criminal case; the duty to prove the charge beyond doubts rests on the prosecution and the court is enjoined to

dismiss the charge and acquit the accused if that duty is not discharged to the hilt. What essentially the court looks at is prima facie evidence for the prosecution which unless controverted would be sufficient to establish the elements of the offence." (Emphasis added) In the matter at hand, cogent evidence linking the accused person with the offence of murder is missing. Having said all, I find that the prosecution has failed to establish a primafacie case against the accused person to require him to enter a defence. Consequently, I hereby under the terms of section 293(1) of the CPA [Cap 20 R: E 2022] dismiss the charge and acquit the accused person of the offence of Murder he stood charged. It is so ordered.

JUDGE 08/10/2024 14 Delivered this 8th day of October, 2024 in the presence of the accused person, Mr. Peter Matete, defence counsel, learned State Attorneys; Ms. Upendo Shemkole, Ms. Agness Awino and Ms. Alice Mutungi for the Republic, Hon. A. A. Madulu Judges' Law Assistant, and Ms. Queen Koba B/C. E. L. NGP .NA

JUDGE 08/10/2024 Court: Right of appeal explained.

JUDGE 08/10/2024 15